CONGRESS, U. S. 



301 



terestedness and his sense of duty, and said : 

 " The question raised here is all about the pre- 

 cedents. As I said before, the times are those 

 when we are compelled to make precedents 

 not to be bound by mere forms of proceeding, 

 precedents in the body which go only to ordi- 

 nary transactions, but, if necessary, to make 

 them." 



Mr. Bayard, of Delaware, followed and ex- 

 pressed a desire that the matter might be post- 

 poned for a day, until he could look over the 

 papers. Alluding to the point of precedents, 

 he said : " I differ greatly from the honorable 

 Senator from Maine in his general principle. 

 If there is any period of time in which there 

 is a necessity of adhering to forms it is in times 

 of high excitement. The mind is apt to be- 

 come biased and prejudiced, and there can be 

 no protection unless you adhere to forms under 

 such circumstances. Apices juris stint jura is 

 a principle which the honorable Senator must 

 know well must often be applied ; that which 

 may seem but form is really the protection of 

 the rights of the party." 



Mr. Trumbull, of Illinois, denied that creden- 

 tials had not been referred before parties had 

 been sworn in, in the Senate. Usually, where 

 the credentials were fair upon their face, the 

 person claiming a seat had been sworn in as a 

 member ; but the practice had not been uni- 

 form. He stated the cases of James Lanman, 

 of Connecticut, in 1825, and Stanley Griswold, 

 of Ohio, in 1809. 



Mr. Sumner, of Massachusetts, said : " I de- 

 sire, Mr. President, to make one single remark. 

 It is said that the proposition now before the 

 Senate is without a precedent. New occa- 

 sions teach new duties ; new precedents are to 

 be made when the occasion requires. Never 

 before in the history of our Government has 

 any person appeared to take a seat in this body 

 whose previous conduct and declarations, as 

 presented to the attention of the Senate, gave 

 reasonable ground to distrust his loyalty. That 

 case, sir, is without a precedent. It belongs, 

 therefore, to the Senate to make a precedent, in 

 order to deal with an unprecedented case. The 

 Senate is at this moment engaged in considering 

 the loyalty of certain members of this body, and 

 it seems to me it would poorly do its duty if it 

 admitted among its members one with regard 

 to whom, as he came forward to take the oath, 

 there was a reasonable suspicion." 



Mr. Bayard, of Delaware, responded : " This 

 is not a new state of things as regards the ques- 

 tion of precedent, founded on mere matter of 

 opinion. Sir, in the war of 1812 there were 

 men sitting in the Senate of the United States, 

 and men admitted into the Senate of the United 

 States, that were opposed to the war and op- 

 posed to the whole action of the Government. 

 That was a war with a foreign enemy ; a war 

 with a domestic enemy is no worse. During 

 the conspiracy of Burr there were men in the 

 Senate of the United States that were believed 

 to sympathize with it, as this gentleman is be- 



lieved to sympathize with those opposed to our 

 Government. I do not know him ; to me he 

 is a stranger. I neither know his opinions nor 

 the evidence in relation to them ; but I say 

 there were gentlemen who were generally re- 

 puted to have sanctioned Burr's conspiracy 

 who were Senators of the United States. The 

 cases may not be exactly parallel to any exist- 

 ing at present ; but condemnation for mere 

 opinion, apart from acts, never can be justice 

 under any circumstances." 



Mr. Lane, of Indiana, urged the right and the 

 duty of the Senate to make an investigation 

 of the matter. In reference to precedents, he 

 said : " A word in regard to the allegation of 

 the want of a precedent in a case like this. I 

 suppose there is no precedent, and I trust in 

 God there may be no occasion hereafter for 

 any similar precedent. There is no precedent 

 for much of our action in referencce to this re- 

 bellion ; there is no warrant in the Constitu- 

 tion for much of it, and why ? Simply because 

 no Government provides for its own dissolu- 

 tion ; hence no precedents will reach this 

 case." 



The subject was then laid over until the 10th 

 of January, when it was again taken up on the 

 question of reference. 



Mr. Bayard, of Delaware, said : u Now, sir, 

 what is the state of facts ? The gentleman's 

 credentials are presented here by a Senator of 

 the United States. According to the Consti- 

 tution, each State it is the right of the State 

 is entitled to two Senators ; and if it happens 

 that at any time a seat becomes vacant, and a 

 term is broken by the death or resignation of a 

 member of the body, the Executive of the 

 State, in the recess of the Legislature, has the 

 right of appointment vested in him. In this 

 case, the credentials are presented, showing an 

 authority, under the great seal of the State, 

 appointing Mr. Stark a Senator of the United 

 States until the next meeting of the Legislature 

 of Oregon. The authority is unquestioned ; no 

 one has objected to it. Next comes the clause 

 of the Constitution which prescribes the quali- 

 fication of a Senator, and under that clause no 

 one doubts that authority is given to a majori- 

 ty of this body to decide upon those qualifica- 

 tions. No one doubts that a majority decides 

 on 'the returns,' meaning the credentials 

 and ' the qualifications ' of the member. That 

 authority is vested by the Constitution in a 

 majority of either House ; and, therefore, when 

 an individual applies to be sworn in as a Sena- 

 tor, if objection is made either to the authority 

 to appoint him, or to the mode of appointment, 

 or to his qualifications, beyond all question it 

 is competent for the Senate, by a majority, ju- 

 dicially to decide that question, and that is 

 what they always do. There may have been 

 erroneous decisions made ; but the presump- 

 tion is, that every Senator feels that he is act- 

 ing judicially in deciding, under the Constitu- 

 tion and on the credentials, whether the party 

 is entitled to a seat. 



